Professional Documents
Culture Documents
Gma and Plunder Law
Gma and Plunder Law
I. INTRODUCTION ......................................................................................274
II. BRIEF HISTORY .......................................................................................277
III. THE PLUNDER LAW .................................................................................280
A. Malum in Se
B. Distinguished from Anti-Graft and Corruption
C. Plunder and Conspiracy
IV. GLORIA MACAPAGAL-ARROYO V. SANDIGANBAYAN ...............................289
A. New Elements
B. “OK, GMA”
V. CONCLUSION ...........................................................................................306
I. INTRODUCTION
In the wake of Martial Law and former President Ferdinand Emmanuel E.
Marcos’ 21-year regime, government prosecutors were faced with the
monumental task of filing multiple and individual criminal cases against the
former President for each and every crime committed during his term.1 The
difficulty of filing charges prompted the Senate and the House of
Representatives to file Senate Bill (S.B.) No. 7332 and House Bill (H.B.)
* ’18 J.D. cand., Ateneo de Manila University School of Law. The Author is a
member of the Board of Editors of the Ateneo Law Journal. She was the Lead Editor
for the special Issue of the 61st Volume and the Associate Lead Editor for the second
Issue of the 60th Volume. She is also currently a member of the Executive
Committee of the 62d Volume of the Journal.
1. An Act Defining and Penalizing the Offense of Plunder, Senate Bill (S.B.) No.
733, explan. n., 8th Cong., 2d Reg. Sess. (1988).
2. An Act Defining and Penalizing the Offense of Plunder, S.B. No. 733, 8th
Cong., 2d Reg. Sess. (1988).
2017] plunder 275
3. An Act Defining and Penalizing the Crime of Plunder, House Bill No. 22752,
8th Cong., 2d Reg. Sess. (1988).
4. An Act Defining and Penalizing the Crime of Plunder, Republic Act No. 7080
(1991).
5. Id. § 2 & An Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Laws, as Amended, Other
Special Penal Laws, and for Other Purposes, Republic Act No. 7659 (1993).
6. Republic Act No. 7080, § 2 & Republic Act No. 7659, § 12.
7. The Plunder Law is a special penal law, and special penal laws are ordinarily
considered “offenses” and not “crimes.” However, the title of the law is “The
Crime of Plunder” because the legislators wanted to impress the fact that this is a
crime malum in se and not merely malum prohibitum. CONG. REC., Vol. IV, at
1398, 8th Cong., 2d Reg. Sess. (June 6, 1989).
8. Republic Act No. 7080, § 2.
9. Id. Section 1 (d) of the same law provides that ill-gotten wealth may be acquired
by any combination or series of the following means or similar schemes:
(a) [t]hrough misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
(b) [b]y receiving, directly or indirectly, any commission, gift, share,
percentage, kickback[,] or any other form of pecuniary benefits from
any person and/or entity in connection with any government contract
or project or by reason of the office or position of the public officer;
(c) [b]y the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
276 ateneo law journal [vol. 62:274
15. Republic Act No. 7659, § 12. The death penalty was suspended in 2006. There
are plans to reinstate the same, but plunder is excluded as a crime punishable by
death. An Act Prohibiting the Imposition of Death Penalty in the Philippines,
Republic Act No. 9346 (2006); An Act Imposing The Death Penalty On
Certain Heinous Crimes, Repealing For The Purpose Republic Act No. 9346,
Entitled “An Act Prohibiting The Imposition Of Death Penalty In The
Philippines”, And Amending Act No. 3815, As Amended, Otherwise Known
As “The Revised Penal Code”, And Other Special Penal Laws, H.B. No. 4727,
17th Cong., 1st Reg. Sess. (2016); & DJ Yap, Plunder excluded from death penalty,
Feb. 11, 2017, PHIL. DAILY INQ., available at http://newsinfo.inquirer.net/
870463/plunder-excluded-from-death-penalty (last accessed Aug. 10, 2017).
16. Organo v. Sandiganbayan, 314 SCRA 135 (1999).
17. Id. at 139-40 & An Act Further Defining the Jurisdiction of the Sandiganbayan,
Amending for the Purpose Presidential Decree No. 1606, as Amended,
Providing Funds Therefor, and for Other Purposes, Republic Act No. 8249
(1997).
18. Organo, 314 SCRA at 137.
19. Id. at 140.
20. Republic Act No. 7080, § 3.
278 ateneo law journal [vol. 62:274
impliedly modified by the passage of R.A. No. 8249.21 Under the later law,
the jurisdiction over public officers with a Salary Grade below “27” is with
the Regional or Municipal Trial Court.22 Thus, even in Plunder, only public
officers with Salary Grades “27” or higher are to be tried in the
Sandiganbayan.23
A few years later, in the early 2000s, came the landmark case of Joseph
Ejercito Estrada v. Sandiganbayan24 and its sister case, Jose “Jinggoy” Estrada v.
Sandiganbayan (Third Division).25 These cases are probably the most important
cases in the history of the Plunder Law — they dealt with one of the biggest
scandals in the country, with former President Joseph Ejercito Estrada
(President Estrada) being the highest-ranking official to be accused and
eventually charged of plunder at the time.26
In Joseph Ejercito Estrada, President Estrada challenged the
constitutionality of the Plunder Law.27 He anchored his case on the void-
for-vagueness doctrine in relation to the words “combination” and “series”
in Section 1 (d) of the Plunder Law.28
The Supreme Court was not swayed. According to them, the void-for-
vagueness doctrine does not apply to penal statutes,29 and the meanings of
the words “combination” and “series” should be understood in their natural,
plain, and ordinary sense. 30 Citing the dictionary and the legislative
deliberations stating that the words should be understood only in their
ordinary sense,31 the Court defined combination and series as follows —
21. Organo, 314 SCRA at 140. The Supreme Court emphasized that Section 3 of
the Plunder Law has the phrase “[u]ntil otherwise provided by law.” Republic
Act No. 8249 was that law. Id.
22. Id. at 139 (citing Republic Act No. 8249, § 4 (b)).
23. Id.
24. Joseph Ejercito Estrada v. Sandiganbayan, 369 SCRA 394 (2001).
25. Jose “Jinggoy” Estrada v. Sandiganbayan (Third Division), 377 SCRA 538
(2002). The case of Edward Serapio, another crony of President Estrada, also
went up to the Supreme Court, but it is not discussed in this Essay because the
pertinent points of that case are essentially the same as that in Jinggoy Estrada.
26. Joseph Ejercito Estrada, 369 SCRA at 427.
27. Id.
28. Id. at 427 & 435.
29. Id. at 439.
30. Id. at 436.
31. Id. at 436-38.
2017] plunder 279
A. Malum in Se
Plunder is one of those few special penal laws that are not malum prohibita but
malum in se.38 Intent is necessary.39 The Supreme Court, citing the Separate
Opinion of Justice Vicente V. Mendoza in Joseph Ejercito Estrada, has noted
that the rules on mitigating and aggravating circumstances and degree of
participation apply to plunder.40 Section 2 of the Plunder Law states that
“[i]n the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.”41 Thus —
The application of mitigating and extenuating circumstances in the Revised
Penal Code to prosecutions under the Anti-Plunder Law indicates quite
clearly that mens rea is an element of plunder since the degree of
responsibility of the offender is determined by his [or her] criminal intent.42
The Court also pointed out that when R.A. No. 7659 amended the
Plunder Law, the former made it clear that the crime of plunder is
considered inherently wrong —
WHEREAS, the crimes punishable by death under [R.A. No. 7659] are
heinous for being grievous, odious[,] and hateful offenses and which, by
reason of their inherent or manifest wickedness, viciousness, atrocity[,] and
perversity are repugnant and outrageous to the common standards and
norms of decency and morality in a just, civilized[,] and ordered society[.]43
In the words of Justice Marvic Mario Victor F. Leonen, it is “an offense
so debased, it may as well be characterized as the apex of crimes chargeable
against public officers.”44
45. Anti-Graft and Corrupt Practices Act, Republic Act No. 3019 (1960).
46. An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL
CODE], Act No. 3815, tit. VII (1932).
47. RODRIGUEZ, supra note 34, at 121-22.
48. See RODRIGUEZ, supra note 34, at 122.
49. Id. at 120-21.
50. Id. Senator Tañada used the example of the Garchitorena Scam. RODRIGUEZ,
supra note 34, at 121.
282 ateneo law journal [vol. 62:274
So[,] we would think that since it will not only be the amount involved
that would be the crucial factor to be considered but it would only be one
of the factors, then there would be basis in considering reducing the
amount to [P50] million [ ].
[Congressman Garcia]. The danger here is that we are creating, we are
enacting a law which will practically repeal not only the provisions in the
Revised Penal Code but also the Anti-Graft and Corrupt Practices Act.
Crimes of this nature usually[,] or even invariably[,] involve several people.
There is always conspiracy. Because in malversation, for example, the
official concerned connives with the accountant and the auditor. So there is
conspiracy. There is a series of acts. But then in our definition of ill-gotten
wealth, ill-gotten wealth as defined in this bill, because there can be ill-
gotten wealth involving only five thousand or three thousand pesos, but ill-
gotten wealth as defined in this bill refers to wealth of substantial or
immense proportion. ... And so[,] if we place the amount [P50] million,
there would practically be no distinction between the Anti-Graft and
Corrupt Practices Act and this crime of plunder. ... .
[Senator Tañada]. Well, at the same time, Mr. Congressman, with the
existing and prevailing laws that we have, which you have referred to, we
have not yet really even caught the so-called big fish. We are still looking
for that big fish.
...
[Congressman Garcia]. Well, let’s face it. The enactment of this, no, not
exactly, [ ] the filing of this Bill in the Senate [—] because it started in the
Senate[ —] was apparently the result of what happened during the Marcos
years. How schemes, strategies were resorted to in order to plunder the
nation’s wealth and raid the treasury of the country. Because, actually, we
have enough laws in our statute books[ —] we have the Anti-Graft and
Corrupt Practices Act and we have also the law on the ill-gotten wealth
and [ ] the provisions of the Revised Penal Code. ... .
...
Now, if we are saying that crimes committed by public officers are not
punished enough, then, we amend the Anti-Graft and Corrupt Practices
Act by providing for stiffer penalties. ... .
[W]hat difference would there be between the crime of plunder and the
crime penalized under the Anti-Graft and Corrupt Practices Act if we set
the amount at only [P50] [million]? One big construction would already
now require an appropriation of some [250] [million] or even [billions] of
pesos.
Now, if there is malversation here or there is Anti-Graft and Corrupt
Practices here, then you will prosecute that under plunder[.] [T]hat is not
plunder. That is a simple case of malversation or violation under the Anti-
Graft and Corrupt Practices Act. So, we are trivializing this crime, as a
2017] plunder 283
matter of fact, because any and all crimes that may be committed under the
Anti-Graft and Corruption Act may also be prosecuted under the crime of
plunder. We want to distinguish this from the Anti-Graft and Corrupt
Practices Act. The Anti-Graft and Corrupt Practices Act under Section 3 of
the definition is already [all-embracing]. It embraces any and all criminal
acts committed by public officers. But here, we are trying to deliver a
message that the crime of plunder is one committed by an administration[,]
like the past administration[,] through the aid of cronies [and] nominees.51
The two eventually arrived at a compromise of P75 million, 52 but
unfortunately for Congressman Garcia, R.A. No. 7659 soon after amended
this portion of the law and reduced the amount down to P50 million.53 Still,
the Plunder Law is clearly very distinct from R.A. No. 3019. It contemplates
a “crime of immense magnitude” 54 — the plunder of an entire nation
through some conspiracy or combination of acts.55 The importance of the
words “combination” or “series,” as well as the idea of plunder as a
conspiracy, are further taken up under the next Section of this Essay.
59. Republic Act No. 7080, § 4 (as amended) (also known as the Plunder Law)
(emphasis supplied).
60. Joseph Ejercito Estrada, 369 SCRA at 435.
61. Id. at 439.
62. Id.
63. Republic Act No. 7080, § 4 & Joseph Ejercito Estrada, 369 SCRA at 435.
64. RODRIGUEZ, supra note 34, at 120.
65. 18 U.S.C. §§ 1961-68 (1970). The Rackeeter Influenced and Corrupt
Organizations (RICO) Act defines “pattern” or “rackeetering activity” as an act
that “requires at least two acts of racketeering activity, one of which occurred
after the effective date of this chapter and the last of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior
act of racketeering activity[.]” Id.
2017] plunder 285
which partly inspired the Plunder Law. 66 The RICO Act was enacted
because the United States legislators recognized that in organized crime,
those held directly liable were often only a small part of a criminal
network.67 The heads of these criminal syndicates, the criminal masterminds,
were difficult to catch because of the lack of direct evidence against them.68
The concept is the same in the Plunder Law — both laws are designed to tie
crimes together and “catch the big fish.”69
Under the RICO Act, conspiracy, by itself, is a crime.70 In contrast, in
the Philippines, as a general rule conspiracy itself is not a crime — it is only a
means to commit a crime.71 In Joseph Ejercito Estrada, it was even held that the
allegation of conspiracy is only a matter of procedure.72 In that case, one of
President Estrada’s grounds for assailing the information against him was that
the word “pattern” in Section 4 73 was an element of the crime, and
therefore must be sufficiently defined.74 The idea was that, even though the
word was not under Section 2, it was so essential to the crime that it must be
an element without which there could be no conviction of plunder.75 The
Court, in answering such argument, clarified that Section 4
66. Rodriguez, supra note 34, at 120-21 & Jose “Jinggoy” E. Estrada, 377 SCRA at
556 (citing LAFAVE & SCOTT, CRIMINAL LAW 550-51 (1986)). “Pattern” is
defined differently in the RICO Act from the Plunder Law, but it similarly
requires a “proof of a ‘pattern’ of racketeering activity.” USLegal, Racketeer
Influenced and Corrupt Organizations (RICO) Act, available at
https://extortion.uslegal.com/racketeer-influenced-and-corrupt-organizations-
rico-act (last accessed Aug. 10, 2017).
67. See Justia, Criminal Law: Racketeer Influenced and Corrupt Organizations
(RICO) Law, available at https://www.justia.com/criminal/docs/rico.html (last
accessed Aug. 10, 2017).
68. Id.
69. See JUX Law Firm, RICO — Overview of Racketeer Influenced & Corrupt
Organizations Act, available at https://jux.law/overview-of-racketeer-
influenced-corrupt-organizations-rico-act (last accessed Aug. 10, 2017).
70. 18 U.S.C. § 1962, ¶¶ (a)-(c).
71. Jose “Jinggoy” Estrada, 377 SCRA at 557. Conspiracy itself is only a crime if the
law specifically provides for it, such as in treason, rebellion, and sedition. Id.
72. Joseph Ejercito Estrada, 369 SCRA at 450. Compare 18 U.S.C. § 1962, ¶¶ (a)-(c)
with Republic Act No. 7080, § 4.
73. Republic Act No. 7080, § 4.
74. Joseph Ejercito Estrada, 369 SCRA at 449-50.
75. Id.
286 ateneo law journal [vol. 62:274
name was not listed under the other three paragraphs.84 Thus, one of his
attacks on the Amended Information was that he was not named in the three
other acts, and should be given a penalty lesser than reclusion perpetua.85
The Supreme Court described the conspiracy between President Estrada
and his various cronies as a “wheel conspiracy.”86 Citing United States law,
the Court described the wheel conspiracy as one where there is a central
person, or a hub — in this case, President Estrada — who deals separately
with different persons, or different spokes of the wheel, in order to achieve
his ultimate goal of amassing, accumulating, or acquiring ill-gotten wealth.87
Jinggoy Estrada, as one of the spokes, was therefore liable even for the acts of
the other spokes of the wheel as he was part of the entire conspiracy.88
Here, the Supreme Court stated that the gravamen of the charge of
conspiracy89 is
not that each accused agreed to receive protection money from illegal
gambling, misappropriated a portion of the tobacco excise tax, that each
accused ordered the GSIS and SSS to purchase shares of Belle Corporation
and receive commissions from such sale, nor that each unjustly enriched
himself from commissions, gifts[,] and kickbacks[.] [Rather], it is that each of
them, by their individual acts, agreed to participate, directly or indirectly, in the
amassing, accumulation[,] and acquisition of ill-gotten wealth of and/or for former
President Estrada.90
In short, the Court held Jinggoy Estrada liable under the well-established
doctrine that in conspiracy, the act of one is the act of all.91 However, this
particular argument is not without criticism.92 Jinggoy Estrada was charged
with funneling more or less P545,000,000 from illegal gambling proceeds to
his father’s dummy corporations.93 The amount, even without the other
sources of illegal funds, far exceeds the 50 million-peso requirement in the
Plunder Law. But what if the amount in question had been P49 million?
What if it had been in the hundred thousands, or only in the thousands?
Under the doctrine in conspiracy that the act of one is the act of all, Jinggoy
Estrada would still be guilty for the entire amount of plunder, regardless of
his actual contribution to the same. That situation is precisely what the
legislators contemplated when they included the phrase “[i]n the imposition
of penalties, the degree of participation ... shall be considered by the court”94
in Section 2 of the Plunder Law. The concept of degrees of participation,
however, is incompatible with the idea that “the act of one is the act of
all.”95
As a last point on conspiracy, it is important to know that the Supreme
Court established in Jose “Jinggoy” Estrada that Jinggoy Estrada was, without
a doubt, sufficiently charged with conspiracy.96 Again, there are two forms
of conspiracy: conspiracy as a crime in itself, and conspiracy as a means to
commit a crime.97 In the first form, conspiracy is an element of the crime,
and must be sufficiently established in the Information the same way that any
other element is established — it must be alleged and clearly set forth in the
complaint.98 On the other hand, in conspiracy as a means to commit a
crime, “there is less necessity of reciting its particularities in the
Information[.]”99 Citing the case of People v. Quitlong,100 the Court said that,
to allege conspiracy as a means of committing a crime, it is not even
necessary to use the word “conspiracy” in the Information.101 It is enough
that the following requisites are met:
(1) [ ] use of the word [‘]conspire,[’] or its derivatives or
synonyms, such as confederate, connive, collude, etc[.]; or
(2) [ ] allegations of basic facts constituting the conspiracy in a
manner that a person of common understanding would know
what is intended, and with such precision as would enable the
“fraudulent schemes and nefarious activities ... which affect the integrity of
[the PCSO’s] operations[.]” 109 These cash advances were ripe with
irregularities: the CIF funds were commingled with the charity, operating,
and prize funds of the PCSO, contrary to law;110 the cash advances were not
supported by documentation, but were still signed and approved by the
PCSO Budget and Accounts Officer Benigno B. Aguas (Aguas), also
contrary to law;111 and the money was withdrawn even though PCSO was
already working on a deficit.112 In spite of all these irregularities, the cash
advances were signed and approved by President Arroyo with an unqualified
“OK.”113
When an investigation into the PCSO funds revealed that these cash
advances, totaling over P366 million, had vanished, the Ombudsman filed a
case against President Arroyo, Uriarte, Aguas, and several others for
plunder.114 After the prosecution had rested its case, President Arroyo filed a
demurrer to evidence, alleging that the evidence presented against her was
not enough to show that she had either committed any overt act of plunder
or that she had been in conspiracy with Uriarte, Aguas, or the others.115 The
Sandiganbayan denied the demurrer for evidence, and President Arroyo
brought the case up to the Supreme Court on a petition for certiorari under
Rule 65, claiming grave abuse of discretion on the part of the
Sandiganbayan.116
The denial of a demurrer to evidence is an interlocutory order.117 It is
the Court’s way of saying, “there is enough here for us to go to trial.”
Therefore, as a general rule, the remedy for the parties is to continue to trial
and determine the guilt or innocence of the parties there.118 The issue may
be raised to the Supreme Court only if the lower court commits “grave
abuse of discretion” 119 — if the lower court, despite the clear lack of
evidence against the accused, denies the demurrer and continues to trial.120
This is the standard with which the case of Gloria Macapagal-Arroyo
should be read. Did the prosecution, in presenting their evidence, present so
little that the Supreme Court had jurisdiction to step in and strike down the
ruling of the Sandiganbayan? The Supreme Court harps on the lack of clarity
of the Information against President Arroyo,121 the weakness of her “OK” as
an overt act of plunder,122 and the lack of conspiracy.123 However, it seems
as though the Supreme Court may have applied “reasonable doubt” as a
standard for weighing the evidence against President Arroyo, and not the
“sufficient evidence” standard that would have been the Sandiganbayan’s
standard,124 seemingly substituting their own discretion for that of the lower
court’s. Given the overwhelming amount of evidence presented by the
prosecution, the amounts involved, the public interest, and the very nature
of President Arroyo’s position as the most powerful person in the country,125
it was arguably more than just reasonable for the Sandiganbayan to want a
full-blown trial — it was their duty. As Chief Justice Maria Lourdes A.
Sereno said in her dissenting opinion —
The crime charged, the personalities involved, the amount in question, and
the public interest at stake [ ] are considerations that should prompt us to
demonstrate an even hand, conscious that the benefits of the [d]ecision
would cascade to the least powerful accused in all future proceedings. We
must be mindful of the potentially discouraging impact of a grant of this
particular demurrer on the confidence of trial courts.
Nearly P366 million of the People’s money is missing. Direct documentary
evidence whereby petitioner Aguas states that a large part of this[,] or
P244.5 million to be exact[,] was diverted to the Office of the President
under petitioner [President] Arroyo was considered sufficient by the
Sandiganbayan to require both petitioners herein to proceed with the
presentation of their defense evidence. This cogent conclusion by the
A. New Elements
The decision in Gloria Macapagal-Arroyo stands out from the other cases on
plunder for two reasons: the concept of personal gain and the concept of a
mastermind. Prior to this case, these two elements had barely, if at all, been
mentioned in the other cases on plunder. Yet, in Gloria Macapagal-Arroyo,
they were not only central to ruling in favor of President Arroyo, they are
also possibly forms of judicial legislation.
1. Personal Gain
President Arroyo’s first defense against the plunder charges against her was
the fact that the prosecution had never proved that she had “amassed,
accumulated[,] or acquired even a single peso of the alleged ill-gotten
wealth[.]”127 The Sandiganbayan, at the first instance, rebuffed this defense
by citing the Congressional deliberations of one of the bills128 that eventually
became the Plunder Law. There, it was clarified that the words “personal
benefit” had been purposefully removed from the law.129
Senator Enrile. How about the wife [or husband of the plunderer], Mr.
President, [she or] he may not agree with the plunderer to plunder the
country but because she is a dutiful wife or [he is] a faithful husband,
she [or he] has to keep her or his vow of fidelity to the spouse. And, of
course, she [or he] enjoys the benefits out of the plunder. Would the
Gentleman now impute to her or him the crime of plunder simply
because she or he knowingly benefited out of the fruits of the plunder
and, therefore, ... he [or she] must suffer the penalty of life
imprisonment?
[Senator Jovito R. Salonga (Senator Salonga)]. That was stricken out
already in the Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5
were stricken out in the Committee amendment. But, as I said, the
examples of the Minority Floor Leader are still worth spreading in the
[Record]. And, I believe that in those examples, the Court will [just
have] to take into consideration all the other circumstances prevailing
in the case and the evidence that will be submitted.
[Senator Salonga]. In any event, [‘]knowingly benefited[’] has already
been stricken off.[ ]
Id. at 336. (citing CONG. REC. Vol. IV, at 1403).
130. Id.
131. Id.
294 ateneo law journal [vol. 62:274
taken, the phrase raids on the public treasury similarly requires such use of the
property taken.133
This interpretation, however, goes against exactly the situation that
Congressman Albano contemplated. If, as explained by Congressman Albano
and confirmed by Congressman Garcia, a public officer can be liable for
plunder even without having gained materially, then there is no need to
show “use” of the property taken. In the case of President Arroyo, it should
not have mattered that the prosecution was unable to show that she received
a single centavo of the missing funds.
The lawmakers, without a doubt, intended that personal benefit not be
an element of the Plunder Law — and for good reason. Requiring a
showing of personal benefit in a crime makes it incredibly difficult to prove.
Plundered money, by nature, will be hidden behind the locked doors of
Bank Secrecy laws, or on offshore accounts, or under false identities. Even
Justice Estela Perlas-Bernabe, who concurred in the decision favoring
President Arroyo, had this to say —
Suppose a plunderer had already illegally amassed, acquired, or accumulated
[P50] [million] or more of government funds and just decided to keep it in
his [or her] vault and never used such funds for any purpose to benefit him
[or her], would that not be plunder? Or, if immediately right after such
amassing, the monies went up in flames or recovered by the police,
negating any opportunity for the person to actually benefit, would that not
still be plunder? Surely, in such cases, a plunder charge could still prosper
and the argument that the fact of personal benefit should still be evidence-
based must fail.134
2. Mastermind
The existence of a conspiracy between President Arroyo, Aguas, and
Uriarte, was the cornerstone of the prosecution’s case against them. Without
it, the entire case falls apart. Conspiracy in plunder has been thoroughly
discussed in previous jurisprudence. To recapitulate, in Joseph Ejercito Estrada,
the Supreme Court made it clear that conspiracy is a matter of procedure,
and that the only elements of plunder are those enumerated in Section 2 of
the law.135 In Jose “Jinggoy” Estrada, the Court maintained the doctrine that
in conspiracy, the act of one is the act of all. The Court upheld Quitlong in
133. Macapagal-Arroyo, 797 SCRA at 335. Some Justices also believe that the use of
statutory construction in this instance is flawed. Macapagal-Arroyo, 797 SCRA at
399 (J. Perlas-Bernabe, concurring and dissenting opinion).
134. Id. at 400.
135. Joseph Ejercito Estrada, 369 SCRA at 450.
296 ateneo law journal [vol. 62:274
143. Macapagal-Arroyo, 797 SCRA at 367 (C.J. Sereno, dissenting opinion) &
Macapagal-Arroyo, 797 SCRA at 382-83 (J. Perlas-Bernabe, concurring and
dissenting opinion).
144. Macapagal-Arroyo, 797 SCRA at 302 (emphasis supplied).
145. Id.
146. Reyes v. Ombudsman, 787 SCRA 354, 372 (2016).
147. Id.
148. The Information against Napoles also did not contain the word, although there
was, admittedly, a subtle difference between her Information and the former
President’s. In Reyes and Enrile, Senator Enrile and Jessica Lucila G. Reyes are
accused of conspiring with one another and with Napoles. In Gloria Macapagal-Arroyo,
the parties are only accused of conspiring with one another. Is this difference
2017] plunder 299
B. “OK, GMA”
1. Overt Act
Conspiracy, to be established, requires an “agreement to accomplish an
illegal objective, coupled with one or more overt acts in furtherance of the
illegal purpose; and [the] requisite intent necessary to commit the underlying
Justice Leonen, in his dissent, opines that the Plunder Law provides that
an act may be overt or criminal.159 However, it must be remembered that
the prosecution needed to prove that she was a co-conspirator — the issue is
not whether President Arroyo can be held directly liable for a “series or
combination of overt or criminal acts,” but whether it shows her intent to be
part of the conspiracy.
[T]o be considered a part of the conspiracy, each of the accused must be
shown to have performed at least an overt act in pursuance or in
furtherance of the conspiracy, for without being shown to do so[,] none of
them will be liable as a co-conspirator, and each may only be held
responsible for the results of his [or her] own acts.160
Justice Perlas-Bernabe, in her separate concurring and dissenting
opinion, elaborates —
For a conspiracy charge to prosper, it is important to show that the accused
had prior knowledge of the criminal design; otherwise, it would hardly be
the case that his [or her] alleged participation would be in furtherance of
such design.
...
While [President Arroyo] may have approved the use of CIF funds which
would be the determinative act for which Uriarte was able to amass,
acquire, or accumulate the questioned funds, the prosecution failed to
satisfactorily establish any overt act on [President] Arroyo’s part that would
clearly show that she knew that the funds she had approved for release was
intended to further the alleged criminal design. In other words, while
[President] Arroyo’s approval was an indispensible act in ultimately realizing the
objective of the scheme or pattern of criminal acts alleged in the Plunder Information,
there is no sufficient evidence — whether direct or circumstantial — to prove that she
had knowledge of such objective, and hence, could not have given her assent to.
Without knowledge, there can be no agreement, which is precisely the essence of
conspiracy.161
To prove that President Arroyo was liable for conspiracy, they needed to
prove that her act of signing the CIF forms with an unqualified “OK”
showed her knowledge of the fraudulent activities. They presented a wealth
of evidence, including the very letter-request forms made by Uriarte and the
circumstances surrounding President Arroyo’s signing. It was a matter of
appreciation of evidence — the Sandiganbayan denied President Arroyo’s
168. Commission on Audit, Commission on Audit Circular No. 03-002 [COA Circ.
No. 03-002] (July 30, 2003).
169. LOI No. 1282, para. 2 (emphasis supplied).
170. Macapagal-Arroyo, 797 SCRA at 439-40 (J. Leonen, dissenting opinion).
171. Id.
172. Macapagal-Arroyo, 797 SCRA at 325.
173. Macapagal-Arroyo, 797 SCRA at 392 (J. Perlas-Bernabe, concurring and
dissenting opinion) (emphasis supplied).
174. See COA Circ. 92-385 & COA Circ. 03-002.
175. Macapagal-Arroyo, 797 SCRA at 441-44 (J. Leonen, dissenting opinion).
304 ateneo law journal [vol. 62:274
2. Negligence
Regardless of the knowledge or intent, President Arroyo’s act is easily of
negligent character. It was her signature that allowed millions of pesos worth
of taxpayers’ money to vanish.
Consider a situation where a city accountant or treasurer, charged with
the duty of processing and approving cash advances, is remiss in his or her
duties. Millions of pesos slip through the cracks unnoticed, for years. The
city accountant or treasurer, being a public officer, would be liable for gross
negligence, regardless of the good faith, intent, or knowledge of the persons
involved. This is the case of Jaca v. People. 181 Edna J. Jaca (Jaca) and
Eustaquio B. Cesa (Cesa) were charged with essentially the same thing that
President Arroyo was charged with — signing off on cash advances without
question.182 The Supreme Court ruled that Jaca’s and Cesa’s acts constituted
gross, inexcusable negligence, “characterized by the want of even slight
care,” and found both of them guilty.183
It is difficult to understand why lower-ranking officials can be sent to rot
in prison, while a person who has once held the most powerful position in
the country walks free, when both are essentially guilty of failure to comply
with their duties — Jaca and Cesa, with safeguarding the money of Cebu
City, and President Arroyo, with safeguarding the money of the entire
nation. “With great power, comes great responsibility,”184 but apparently no
great consequences.
The difference can be explained by the fact that Jaca and Cesa were
charged under R.A. No. 3019, while President Arroyo was charged with
violation of the Plunder Law.
R.A. No. 3019, like the Plunder Law, is a crime malum in se.185 In Gloria
Macapagal-Arroyo, none of the Justices, dissenting or otherwise, questioned
the requirement of intent in plunder. They only debated on whether or not
President Arroyo could have been presumed to know, given her
intelligence, her position, and the circumstances surrounding the
controversy. Unlike the Plunder Law, however, gross negligence was
specifically made punishable under R.A. No. 3019, in Section 3 (e) thereof
—
[Section 3. Corrupt practices of public officers]. — In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
...
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage[,] or
preference in the discharge of his [or her] official administrative or judicial
functions through manifest partiality, evident bad faith[,] or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or
V. CONCLUSION
The only act that President Arroyo was actually accused of in this whole
affair was the signing of “OK, GMA.” This act alone will most certainly not
meet the three elements of plunder, so she cannot be held liable for plunder
on her own. For this reason, the prosecution hinged their entire case against
the former President on her liability as a co-conspirator of Uriarte, the last
person to have handled the missing funds.
The Supreme Court, in ruling that there was no conspiracy, attacked the
Information against President Arroyo for failing to state two “elements” of
plunder: personal benefit on the part of the main plunderer, and the
identification of a mastermind or express conspiracy in plunder involving
multiple persons. The Supreme Court also ruled that President Arroyo’s act
of signing “OK, GMA” on the letter-requests was insufficient to show that
191. Carolyn Bonquin, Joc-Joc Bolante cleared of plunder in feritilizer fund scam,
available at http://news.abs-cbn.com/news/12/12/16/joc-joc-bolante-cleared-
of-plunder-in-fertilizer-fund-scam (last accessed Aug. 10, 2017).
192. See RODRIGUEZ, supra note 34, at 123.
308 ateneo law journal [vol. 62:274
President Marcos and his cronies. It was not only difficult to file charges
against him because of the “one crime, one information” rule. It was also
difficult because of the kind of systemic thievery employed by the former
dictator. Many of his crimes were committed with a cloak of legality193 —
Presidential Decrees, government corporations, and powerful allies, to name
a few — that made it difficult to hold him directly responsible. He pulled his
strings from the shadows, but he left his hands clean. The legislators
recognized that the current laws, including R.A. No. 3019, were not
enough to hold him liable for all that he was truly responsible for.
Thus, the Plunder Law. It is a great irony that the prosecution might
have been better off charging President Arroyo with graft and corruption
under R.A. No. 3019 than with plunder. The law is designed precisely to
catch the elusive criminal, the mastermind that R.A. No. 3019 is incapable
of prosecuting. Thus, this decision, with its incredibly strict interpretation of
the Plunder Law, has unfortunately defeated the very purpose for which the
law was made.